Abuzaid v. Modjarrad & Associates, P.C.

On
Appeal from the 95th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-06551.

Before
Chief Justice Wright, Justice Francis, and Justice Stoddart

MEMORANDUM OPINION ON RULE 24.4 MOTION

CAROLYN WRIGHT CHIEF JUSTICE

Joseph
Abuzaid has requested this Court to review the trial
court's order striking his net worth affidavit and notice
of filing a net worth affidavit in lieu of supersedeas bond.
See Tex. R. App. P. 24.4. For the reasons that
follow, we reverse the trial court's order and remand to
the trial court for further proceedings consistent with this
opinion.

In
2016, Abuzaid obtained a $1.4 million judgment against Muamar
Anani and David Wittmer ("the Anani judgment").
During the course of that litigation, Abuzaid was represented
by a series of attorneys. A dispute arose between Abuzaid and
one of his attorneys, Carlos Cortez, about the terms of
Cortez's engagement. The trial court granted Cortez leave
to withdraw. After he withdrew, Cortez's law firm,
Modjarrad & Associates, P.C., d/b/a MAS Law Firm
("MAS") filed a petition in intervention in the
Anani lawsuit to recover for the legal services rendered to
Abuzaid. MAS obtained a default judgment against Abuzaid for
over $250, 000 ("the default judgment"). On
MAS's motion, the trial court severed the default
judgment, and Abuzaid timely appealed. The trial court then
signed the Anani judgment, awarding Abuzaid $1.4 million in
actual damages and attorney's fees, and Anani appealed.

On July
17, 2017, EFYU JO, LLC ("LLC") filed an ex parte
emergency motion for turnover relief in the severed
intervention asserting it was the "assignee and
successor in interest" of the default judgment. LLC
sought to collect on the default judgment by requiring
Abuzaid to turn over the Anani judgment to the Dallas County
Sheriff for sale. The next day, the trial court granted
LLC's motion and ordered Abuzaid to turn over the Anani
"judgment and all other documents required to effectuate
the turnover" to the Dallas County Sheriff for sale and
for the proceeds of that sale to be applied to satisfy the
default judgment. In the order, the trial court also
"transferred" the judgment to the sheriff and
directed the sheriff to sell the judgment immediately.

The
Dallas County Sheriff subsequently posted notice the Anani
judgment would be sold at a public auction. Before the sale
occurred, Abuzaid deposited $10 with the trial court clerk
and filed an affidavit stating he had a negative net worth.
He also filed a notice of filing net worth affidavit in lieu
of supersedeas bond, stating a writ of execution had already
issued to enforce the default judgment and requesting the
clerk to issue a writ of supersedeas to prevent further
proceedings on that writ.

LLC
filed a motion to strike the net worth affidavit, asserting
Abuzaid's efforts to supersede the default judgment were
untimely. In that motion, LLC claimed the Anani judgment had
already been turned over to LLC "in full and final
satisfaction" of the default judgment. Because execution
was "complete, " LLC asserted the district clerk
could not issue a writ of supersedeas.

The
district clerk nevertheless issued the writ, which halted the
sheriff's sale. LLC then supplemented its objection and
motion to strike Abuzaid's affidavit asserting
Abuzaid's efforts were untimely because the trial court
had turned the judgment over to the Sheriff in full and final
"enforcement" of the default judgment. LLC
also complained Abuzaid's affidavit was not sufficiently
detailed to comply with Texas Rule of Appellate Procedure
24.2(c)(1) and was not prepared in accordance with
"generally accepted accounting principles." LLC
requested the trial court to both strike the affidavit and
declare the writ of supersedeas void. Following a hearing,
the trial court granted LLC's motion and struck
Abuzaid's net worth affidavit on the specific grounds
that it was untimely. The trial court did not make a
determination regarding the sufficiency of Abuzaid's net
worth affidavit or make a determination regarding
Abuzaid's net worth. See Tex. R. App. P.
24.2(c)(3).

LLC's
motion to strike was based, in part, on its claim the net
worth affidavit was filed too late to supersede the default
judgment because the trial court had already turned over the
Anani judgment to LLC. However, the trial court ordered
Abuzaid to turn over the Anani judgment to the
Sheriff and directed the Sheriff to sell the judgment
and for the proceeds to be applied to satisfy the default
judgment. See Tex. Civ. Prac. & Rem. Code Ann.
§ 31.002(b)(1) (West 2015) (under turnover statute,
court may order judgment debtor to turn over nonexempt
property that is in debtor's possession or is subject to
debtor's control, together with all documents or records
related to the property, to designated sheriff or constable
for execution). So, at most, the order allowed the Sheriff to
sell the Anani judgment "as under a writ of
execution." Moreover, the default judgment remains
unsatisfied and is on appeal, and Abuzaid is entitled to
supersede it and to prevent any further enforcement of it.
See Tex. R. App. P. 24.1(f); see also Anderson
v. Lykes, 761 S.W.2d 831, 833 (Tex. App.-Dallas 1988,
orig. proceeding) (filing of supersedeas bond to suspend
underlying judgment suspends trial court's right to
enforce that judgment under the turnover statute),
disapproved on other grounds, Walker v. Packer, 827
S.W.2d 833, 842 (Tex. 1992); In re Bradberry, No.
12-12-00162-CV, 2012 WL 3201928, at *1 (Tex. App.-Tyler Aug.
8, 2012, orig. proceeding) (mem. op.) ("A judgment
creditor has a statutory right to have execution issued to
enforce a judgment pending appeal, unless and until a valid
supersedeas bond has been filed.").

We
conclude the trial court erred in striking Abuzaid's
affidavit as untimely. Because that was the sole basis of the
trial court's ruling, we need not consider
...

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